Can You File a Medical Malpractice Claim If the Patient Died?

Medical providers such as individual doctors, hospitals, and healthcare facilities must meet the medical community’s required standard of care when treating a patient. Unfortunately, not all providers uphold this standard, and instead, they make errors and oversights or behave negligently when diagnosing and treating a patient. Injured patients have the right to file medical malpractice claims against a negligent medical provider, but what if the patient dies from the malpractice?

Under the Illinois Wrongful Death Act, the decedent’s representative may file a medical malpractice-wrongful death claim on behalf of the family against the liable party. Reach out to our medical malpractice lawyer in Chicago if a loved one has passed due to medical negligence.

What Types of Medical Malpractice Cause Wrongful Death?

When medical facilities are understaffed, fail to enforce safety protocols, neglect to provide ongoing training, or have negligent hiring practices, medical malpractice is more likely to occur. The most common types of medical malpractice that result in wrongful death include the following:

• Misdiagnosis
• Delayed diagnosis
• Missed diagnosis
• Medication mistakes
• Surgical errors, including accidental injury to blood vessels and organs, and wrong-patient, wrong-site, wrong-side surgeries
• Anesthesia errors
• Failure to treat
• Inadequate post-surgical monitoring
• Premature patient discharge
• Birth injuries
• Failure to treat infections
• Failure to mitigate hospital-borne infections
• Failure to obtain a complete patient history
• Failure to order the appropriate diagnostic tests
• Misinterpreting diagnostic test results

Spending inadequate time with an emergency room patient due to understaffing is one of the leading causes of medical malpractice deaths. Under 740 ILCS 180/, Wrongful Death Act, a family member may recover compensation for their economic losses, grief, and emotional anguish.

Who Can File a Medical Malpractice Wrongful Death Claim In Illinois?

Some states allow family members to file medical wrongful death claims directly, but in Illinois, only the representative of the decedent’s estate may file a claim on behalf of the decedent’s spouse or next of kin, such as a child or parent.

Often, this is the personal representative or executor named in a will or estate plan, but if the decedent didn’t leave a will, the court will typically appoint a representative if an immediate family member comes forward.

What Can I Get From a Wrongful Death Claim After Medical Malpractice?

No legal process brings back a loved one who died from medical malpractice, but a successful claim demands financial accountability, compensates the family for their economic losses, and often brings the surviving family member a sense of justice.

Common damages recovered include the following:

• Reimbursement for medical expenses
• Funeral and burial costs
• A close family member’s lost income
• The lost earnings for the working years the decedent would have had remaining to them if they’d survived
• Lost benefits, such as health insurance and retirement-plan contributions
• Loss of household services
• Compensation for grief, anguish, loss of companionship, loss of consortium, or the loss of a parent or child’s love and support

In some cases, the representative or family may choose to file a survival action instead of a wrongful death claim. If the decedent suffered many months of pain before their death, a survival action recovers compensation for the decedent’s pain and suffering as well as financial losses to their estate. A Chicago personal injury attorney can assist in determining the best way to move forward on legal action in a fatal medical malpractice case.